The
respondent was enrolled as a Constable in the Delhi Police on or about
01.08.1994. A First Information Report was lodged against him on 30.10.1995 for
commission of an offence under Section 308/34 of the Indian Penal Code. He was
arrested in connection therewith on 30.10.1995.

He
remained in judicial custody for a period of 15 days. A departmental proceeding
was initiated against him in relation to the same incident.

He
filed an original application before the Central Administrative Tribunal (for
short, 'the Tribunal') for stay of the said proceeding till disposal of the
criminal case. By an order dated 23.07.1996, the said original application was
disposed of by the Tribunal upon issuing some directions.

In the
meantime, two revolvers and one pistol were found from the Vijay Ghat Armoury.
Two persons who were accused therein, inter alia, made confessions stating that
the respondent had committed theft of the said two revolvers and pistol. The
respondent on the basis of said confessional statements was arrested on
05.09.1997. While in police custody he also made a confession as regards his
involvement in the said offence. He also led the investigating team to the room
of the Vijay Ghat Armoury and pointed out the place wherefrom, he while working
as a Sentry on the night of 22/23.06.1997, committed theft of two revolvers and
one pistol with some of his colleagues. An identification memo. was prepared therefor
wherein one Inspector Bhalle Ram was a witness. In view of the fact that apart
from confession of the accused, there was no other material on records, the
respondent was discharged from the criminal case by an order dated 01.08.2001.
He was in the meantime dismissed from service without holding any enquiry in
terms of the proviso appended to clause (2) of Article 311 of the Constitution
of India, by an order dated 09.09.1997. A departmental appeal preferred thereagainst
by him was dismissed by an order dated 09.02.1998. The validity of the said
order was questioned by the respondent by filing an application before the
Tribunal. The Tribunal allowed the said application by an order dated
08.08.2001 holding that the Appellant failed to establish sufficient grounds
for dismissing the respondent from service without holding any disciplinary
proceeding. A review petition filed thereagainst was also dismissed by the
Tribunal on 31.12.2001. A writ petition filed by the Appellant was also
dismissed by the High Court on 03.04.2002.

The
Tribunal as also the High Court in their respective judgments opined that the
appellant could not have taken recourse to clause (b) of the proviso appended
to clause (2) of Article 311 of the Constitution of India.

Pursuant
to or in furtherance of the said judgments and orders, a regular disciplinary
proceeding was instituted. On 01.05.2002, a charge-sheet was drawn up against
the Respondent which reads as under :

On
interrogation you Const. Narender Singh 730/DAP confessed that while you were
at CPR Vijay Ghat you had committed theft of two revolvers and pistol from the kot
on intervening night 22/23.6.97 along with Raju, Jasvinder Jassu and Dhannu
after stealing keys of Kot from the pillow of Const. Narender Singh (Kot munshi).

The
above act on your part amounts to grave misconduct and unbecoming of a police
officer which renders you liable to be dealt under the provisions of Delhi
Police (Punishment and Appeal) Rules, 1987." On or about 16.05.2002, in
the said departmental proceeding, the respondent was found guilty and by an
order dated 22.07.2002, he was dismissed from service by the Disciplinary
Authority, stating :

"I
have gone through the record and facts of the file, enquiry report submitted by
the E.O., defence taken by the delinquent Const. Minutely and meticulously. The
charges in a disciplinary action are based on preponderance of evidence that
does not exclude confession made to the police and such confessions need not be
necessarily supported by recovery of material fact as enumerated in the Indian
Evidence Act. In agreement of conclusion by the E.O. I find that charges are
proved against the delinquent officer, if is allowed to continue in the
department like Police, he not only will damage the department by his criminal
activities he will also tarnish image of the police department. Therefore, I Manoj
Kumar Lal, Deputy Commissioner of Police Ist Bn. DAP on being satisfied that
charges on the basis of proof available on the record are proved against the
def. Const. and are of such nature that calls for major departmental
punishment, I award Const. Narender Singh, NO. 730/DAP punishment of dismissal
from the service with immediate effect. His suspension period from 30.10.2001
to date of issue of this order shall be treated as not spent on duty for all
intents and purposes." An appeal filed thereagainst by the respondent was
dismissed by the appellate authority by an order dated 29.05.2003.

An
original application was filed by the respondent before the Tribunal. The
Tribunal in terms of an order dated 24.02.2004 set aside the said order of
dismissal, holding :

"Inspector Bhalle Ram had
stated that he was posted as Inspector CPR/Vijay Ghat. The applicant had made a
Nisandehi in Kot and disclosed that on the intervening night of 22/23.6.1997
had stolen the fire arms.

Inspector Tej Pal Singh, PW-12 had
further appeared and testified that he had investigated the matter.

During
the investigation, the applicant had taken him to Vijay Ghat where Nisandehi
was prepared on his instance which is exhibit PW-8/A. It is on the strength of
the Nisandehi that the respondents have concluded that this is an admission
made by the applicant about the said theft.

We deem it necessary to mention that
even if such a confession is made during the course of investigation. It may
not be relevant before a Court of law but there is no such embargo to read the
same to departmental enquiry. Since the said statement made did not relate to
any recovery, the learned Additional Sessions Judge has discharged the
applicant." The Tribunal allowed the original application. The writ
petition filed thereagainst was dismissed by the High Court in limine.

Mr. Vikas
Singh, the learned Additional Solicitor General appearing on behalf of the
appellant, would submit that the Tribunal and consequently the High Court
committed a manifest error in arriving at the aforementioned findings inasmuch
the embargo contained in Section 25 of the Evidence Act and Section 162 of the
Code of Criminal Procedure are not applicable in the departmental proceedings.
It was submitted that the Tribunal further committed an error in opining that
the confession of the respondent herein being Ex.8/A had not been proved.

Our
attention was furthermore drawn to the order of the disciplinary authority as
also the appellate authority with a view to show that the confession of the
respondent had received due application of mind.

Mr.
M.N. Krishnamani, the learned Senior Counsel appearing on behalf of the
respondent, on the other hand, would submit that even in a disciplinary
proceeding the provisions contained in Section 26 of the Evidence Act would be
attracted as such confessions in police custody are ordinarily extracted by
force. Even if the provisions of Section 26 of the Evidence Act, the learned
counsel would submit, per se are not applicable, the principles analogous
thereto would be applicable even in departmental proceedings. It was
furthermore submitted that in view of the fact that the respondent was
discharged from the criminal case, having regard to the provisions contained in
Rule 12 of the Delhi Police (Punishment and Appeal) Rules, 1987 (hereinafter
referred to as 'the 1987 Rules') , the order of punishment was not sustainable.

It is
not in dispute that the standard of proof required in recording a finding of
conviction in a criminal case and in a departmental proceeding are distinct and
different. Whereas in a criminal case, it is essential to prove a charge beyond
all reasonable doubt, in a departmental proceeding preponderance of probability
would serve the purpose. [See Kamaladevi Agarwal v. State of W.B. and Others, (2002) 1 SCC 555] It is now well-settled
by reason of a catena of decisions of this Court that if an employee has been
acquitted of a criminal charge, the same by itself would not be a ground not to
initiate a departmental proceeding against him or to drop the same in the event
an order of acquittal is passed.

"It
is trite that a judgment of acquittal passed in favour of the employees by
giving benefit of doubt per se would not be binding upon the employer"
[See Bank of India and Another v. Degala Suryanarayana (1999) 5 SCC 762;

Ajit
Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., Haldia and
Others (2005) 7 SCC 764] The Tribunal had proceeded to record its findings only
on two counts, namely,

confession made
by the respondent was not admissible in evidence; and

the said
confession has not been proved.

The
confession admittedly was made by the respondent while in police custody. In
the identification memo, it was recorded :

"Farad
identification Memo place of occurrence in the presence of witnesses accused Narender
Singh alias Nanda S/o Joginder Singh R/o D-8, Type-IInd New Police Line,
Kingsway Camp, New Delhi under police custody by himself voluntarily by walking
ahead in the vicinity of CDR/Vijay Ghat Armoury 1st by DAP entered in the place
covered by boundary walls surrounding through Iron gate entered in the place of
Armoury Room shown the place and told that on 22/23.6.97 (identified) at about
2 am to 05 am he was on sentry duty and during his duty alongwith other
colleagues named Jaswinder, Jaswant alias Jassu, Dhanraj @ Dhannu and Raja
Singh @ Raju committed theft of two revolvers and one pistol. This
identification memo was prepared then and there." A copy of the original
confession was placed before us wherefrom it appears that a date was put below
the signature of the officer who prepared the identification memo containing
the confession of the Respondent. It is not in dispute that Inspector Bhalle
Ram was one of the witnesses to the said document. He examined himself before
the Enquiry Officer, wherein he categorically stated :

"He
stated that in Dec. 1997, he was posted as Inspr. CPR/Vijay Ghat. He cannot
recollect the date at this time because the date on the Nisandehi is not
visible but Inspr. Tej Pal Singh along with his staff of AATS.

Crime
Branch along with accused Narender who is present today here came at Vijay Ghat.
Accused had made a Nisandehi inKot and disclosed that on the night between
22/23.6.97 at about 2
to 5 am he along with
other accused had stolen 2 revolvers and 1 pistol. The memo was prepared and
signed by him as well as others including Const. Narender. The Memo is exhibit
PW- 8/A." In the cross-examination, he was asked only four questions which
together with answers rendered thereto, as recorded by the Enquiry Officer are
reproduced hereinbelow :

Q.
No.2 Is there any date on his exhibit below the signature of Narender Singh ?

Ans.
No.

Q.
No.3 Has Inspr. Tej Pal Singh recovered any weapon from Const. Narender on that
day ?

Ans.
The weapon was not recovered in his presence but IO told that the weapons have
already been recovered.

Q.
No.4 Do you know that court decided the case on merits ?

Ans.
Yes." The fact that the respondent as an accused in the aforementioned
case made a confession and had pointed out the place wherefrom he allegedly had
stolen two revolvers and one pistol, has, thus, not been disputed.

It may
be noticed that no question was, furthermore, put to the said witness to show
that the question put to the said witness was as regard the purported missing
of the date below the signature of the Inspector Tej Pal Singh but it was not
suggested that the said document is a forged or fabricated one. The order of
discharge was passed by the Chief Judicial Magistrate after four years from the
date of institution of the case. The respondent had not retracted from the said
confession. He did not make any complaint to the higher authorities that the
same was extracted from him by force or undue influence.

The
correctness or otherwise of the statement contained in Ex. PW- 8/A has also not
been disputed. The Tribunal, therefore, was not correct in its view that the
confession made by the respondent herein had not been proved in accordance with
law. So far as the evidentiary value of the said confession is concerned, we
may notice that Section 25 of the Evidence Act and Section 162 of the Code of
Criminal Procedure provides for an embargo as regard admissibility of a
confession in a criminal trial. The said provisions have per se no application
in a departmental proceeding. Section 25 of the Indian Evidence Act and Section
162 (c) of the Code of Criminal read thus :

"25.
Confession to police officer not to be proved.- No confession made to a police
officer, shall be proved as against a person accused of any offence." 162.
Statements to police not to be signed : Use of statements in evidence.-(1) No
statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by
the person making it; nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of such statement or
record, be used for any purpose, save as hereinafter provided, at any inquiry
or trial in respect of any offence under investigation at the time when such
statement was made" "Offence" has been defined in Section 2(n)
of the Code to mean :

"(n).
"offence" means any act or omission made punishable by any law for
the time being in force and includes any act in respect of which a complaint
may be made under Section 20 of the Cattle-trespass Act, 1871 (1 of
1871)." The said definition would apply, thus, both to Section 25 of the
Evidence Act and Section 162 of the Code of Criminal Procedure.

The
Tribunal as also the High Court were, therefore, not correct in arriving at the
finding that the said confession was not admissible even in a departmental
proceeding.

In Kuldip
Singh v. State of Punjab and Others [(1996) 10 SCC 659],
this Court held :

"10.
Now coming to the main contention of the learned counsel for the appellant, it
is true that a confession or admission of guilt made by a person accused of an
offence before, or while in the custody of, a police officer is not admissible
in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but
it is equally well settled that these rules of evidence do not apply to
departmental enquiries" It is now well-settled that the provisions of the
Evidence Act are not applicable in a departmental proceeding. [See Depot
Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Others
(1997) 2 SCC 699; Lalit Popli v. Canara Bank and Others (2003) 3 SCC 583; and N. Rajarathinam v. State of T.N. and Another (1996) 10 SCC 371].

In
State of Andhra Pradesh and Others v. Chitra Venkata Rao
[(1975) 2 SCC 557], this Court held :

"The
High Court was not correct in holding that the domestic enquiry before the
Tribunal was the same as prosecution in a criminal case." It was further held
:

"The
scope of Article 226 in dealing with departmental inquiries has come up before
this Court.

Two
propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for
the view that in considering whether a public officer is guilty of misconduct
charged against him, the rule followed in criminal trials that an offence is
not established unless proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be not applied by a
domestic tribunal of inquiry the High Court in a petition under Article 226 of
the Constitution is not competent to declare the order of the authorities holding
a departmental enquiry invalid. The High Court is not a court of appeal under
Article 226 over the decision of the authorities holding a departmental enquiry
against a public servant. The Court is concerned to determine whether the
enquiry is held by an authority competent in that behalf and according to the
procedure prescribed in that behalf, and whether the rules of natural justice
are not violated. Second, where there is some evidence which the authority
entrusted with the duty to hold the enquiry has accepted and which evidence may
reasonably support the conclusion that the delinquent officer is guilty of the
charge, it is not the function of the High Court to review the evidence and to
arrive at an independent finding on the evidence. The High Court may interfere
where the departmental authorities have held the proceedings against the
delinquent in a manner inconsistent with the rules of natural justice or in
violation of the statutory rules prescribing the mode of enquiry or where the
authorities have disabled themselves from reaching a fair decision by some
considerations extraneous to the evidence and the merits of the case or by
allowing themselves to be influenced by irrelevant considerations or where the
conclusion on the very face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion. The departmental
authorities are, if the enquiry is otherwise properly held, the sole judges of
facts and if there is some legal evidence on which their findings can be based,
the adequacy or reliability of that evidence is not a matter which can be
permitted to be canvassed before the High Court in a proceeding for a writ
under Article 226." [See also State of Haryana and Another v. Rattan Singh (1977) 2 SCC 491] The submission of Mr. Krishnamani
that there lies a distinction between the provisions of Section 25 and Section
26 of the Evidence Act, in this behalf, may although be correct but the same is
not of much significance for the purpose of this case.

Section
26 also speaks about confession by an accused while in custody of police.
Sections 25 and 26 of the Evidence Act although seek to achieve the same
purpose but they operate in somewhat two different fields.

Section
25 raises an embargo as regard proof of confession before a police officer. The
same need not be in police custody; whereas Section 26 raises a bar as regard
admissibility of such confession, if made by an accused in the custody of a
police officer although such a confession might have been made before a person
who is not a police officer.

The
policy underlying behind Sections 25 and 26 is to make it a substantive rule of
law that confessions whenever and wherever made to the police, or while in the
custody of the police to any person whomsoever unless made in the immediate
presence of a magistrate, shall be presumed to have been obtained under the
circumstances mentioned in Section 24 and, therefore, inadmissible, except so
far as is provided by Section 27 of the Act.

A
confession would mean incriminating statement made to the police suggesting
inference of the commission of the crime and it, therefore, is confined to the
evidences to be adduced in a court of law. If the provisions of the Evidence
Act are not attracted in a departmental proceeding, a fortiori Sections 25 and
26 shall not apply.

Reliance
placed by Mr. Krishnamani to Rule 12 of the 1987 Rules is misplaced. The said
Rule applies in a case where a person was tried and discharged. The respondent
herein was not tried and acquitted by a criminal court and, thus the said
provision would not apply.

For
the reasons aforementioned, the impugned judgments of the Tribunal and the High
Court cannot be sustained, which are set aside accordingly. The appeal is,
thus, allowed. No costs.